US, Australia isolated in TPP negotiations

Friday, 15th November 2013

Until yesterday, the doors to the TPP negotiating text remained firmly shut to congress and public interest groups. The bracketed text of the TPP Intellectual Property (IP) Chapter released yesterday offers a first proper glimpse into the real progress of these secretive negotiations and the alliances, disagreements and uncertainties bubbling up within.
Outwardly, the political and corporate lobbyists of the TPP claim that a final agreement will be reached before January. The bracketed text of the IP Chapter suggests that this will not be the case.

The 95-page consolidated IP Chapter confirmed rumours that the section was one of the longest and most contested parts of the TPP. Many of the key areas relating to intellectual property are far from consensus. Although numerous of the far-reaching, malign implications contained within the Chapter are buried behind layers of technical glaze, their contested nature reveals itself in the bracketed staccato. The patents section in particular reads like a trench landscape—heavily furrowed with proposals and counter-proposals.

Certain fragments are quite happy to dispense with the euphemistic officialese: one can begin to imagine what Japan’s proposal for “implementing and promoting the Patent Prosecution Highway” might look like if it overcomes the objections of Chile and Peru.

The Chapter demonstrates the challenges of integrating twelve economically, politically and culturally disparate nations into an encompassing trading and enforcement block. Partners range from Vietnam (GDP per capita $1753 in 2012 according to the IMF) to Australia ($67304). The US appears to be responsible for the base text.

The bracketed text allows a dissection of country positions, their degree of investment in particular provisions as well as existing geopolitical faultlines, especially in the heavily contested text relating to intermediary liability of copyright infringement (QQ.I.1). Australia, an important US ally, lined up with the US 64 times, considerably more than the next highest, Peru (54), Singapore (51).

Throughout the text it is clear that on the contentious issues, Australia’s position is closely aligned with the US. Australia and the US are the only two countries to object to a proposal to limit Internet service providers’ liability in relation to copyright infringement, a proposal supported by the remaining countries (minus Japan which does not express its position). Malaysia and New Zealand both oppose provisions that would force ISPs to filter or block access to ’repeat infringers’ of copyright. New Zealand’s proposals have strong support from Malaysia (115) and Chile (114).

Canada, which is more similar economically to Australia than to other ’partner’ countries, is more likely to be supported by New Zealand (114), Chile (109), Malaysia (105), Vietnam(99), Singapore(96) and Mexico (91), before Australia (89).

Australia also stands apart from northern neighbour Singapore. The latter placed nearly every other country before it, including Chile (118), Malaysia (113), Peru (105), New Zealand (102), Vietnam (98), Canada (96) and even Brunei (87). For six of its eleven ’partners’, Australia ranked second last in terms of the support drawn by its proposals.

The draft’s footnotes contains proposed compromise positions, pending clarifications and explanations of the intention behind the proposals. Japan, a latecomer to the TPP, is still considering the wording and content of the text of 108 separate IP Chapter provisions.

The map uses the information contained in the bracketed proposals within the IP-Chapter draft to show the relative alignment of each country in relation to other countries’ positions.

The IP Chapter has entered the public domain where the entirety of the draft TPP belongs. It is for the public, congress and the Internet to consider the Trans-Pacific Partnership on its merits and decide whether it should sink or swim.